United States v. Williamson ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40211
________________________
UNITED STATES
Appellee
v.
Tyler J. WILLIAMSON
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 22 May 2023
________________________
Military Judge: Colin P. Eichenberger (arraignment); Brett A. Landry.
Sentence: Sentence adjudged on 29 July 2021 by GCM convened at Hill
Air Force Base, Utah. Sentence entered by military judge on 19 October
2021: Dishonorable discharge, confinement for 37 months, forfeiture of
all pay and allowances, reduction to E-1, and a reprimand.
For Appellant: Major Matthew L. Blyth, USAF; Jonathan W. Crisp, Es-
quire.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John
P. Patera, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Es-
quire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Senior Judge POSCH delivered the opinion of the court, in which Senior Judge
RICHARDSON and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Williamson, No. ACM 40211
POSCH, Senior Judge:
Contrary to his pleas, Appellant was convicted by a military judge at a gen-
eral court-martial of one specification of sexual assault of JT, one specification
of aggravated assault by inflicting substantial bodily harm upon JT, one spec-
ification each of assault consummated by battery upon JT and a different
woman, SW, and one specification of animal abuse, in violation of Articles 120,
128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 928,
934.1,2 The military judge sentenced Appellant to a dishonorable discharge,
confinement for 37 months, forfeiture of all pay and allowances, reduction to
the grade of E-1, and a reprimand.
On appeal, Appellant asks whether (1) the military judge abused his dis-
cretion in denying Appellant’s pretrial motion to exclude Mil. R. Evid. 404(b)
matters from consideration by the trier of fact; (2) the findings of guilty are
factually insufficient as to his conviction for sexual assault of JT; (3) the find-
ings of guilty are factually insufficient as to his conviction for animal abuse;
(4) the findings of guilty for aggravated assault of JT and for the assaults con-
summated by battery upon SW and JT are factually insufficient, and all five
convictions are legally insufficient; (5) the military judge abused his discretion
by limiting the amount of time available for the court-martial because of a
scheduling conflict the following week; (6) trial defense counsel provided inef-
fective assistance by failing to call witnesses, introduce evidence, rebut evi-
dence, and heed Appellant’s key decisions in the court-martial; (7) Appellant’s
sentence is inappropriately severe; and (8) the omission from the record of trial
of the arraignment audio is substantial and warrants relief.3
1 In this sentence, references to sexual assault, aggravated assault, and animal abuse
are to offenses described in the Manual for Courts-Martial, United States (2019 ed.)
(2019 MCM); and reference to assault consummated by battery is to the offense de-
scribed in the Manual for Courts-Martial, United States (2016 ed.). Except where noted
in this opinion, all other references to the UCMJ, Rules for Courts-Martial (R.C.M.),
and Military Rules of Evidence (Mil. R. Evid.) are to the 2019 MCM.
2 Appellant was acquitted of two specifications alleging rape by using unlawful force
in violation of Article 120, UCMJ, Manual for Courts-Martial, United States (2012 ed.)
(2012 MCM). Appellant was also acquitted of one specification of sexual assault; three
specifications of assault consummated by battery; one specification of obstructing jus-
tice; and one specifications of animal abuse.
3 Appellant personally raises issues (4) through (8) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). With regard to issue (8), on 1 March 2023, we
granted, without opposition, Appellee’s motion to attach an audio recording of the ar-
raignment along with a declaration attesting to its authenticity.
2
United States v. Williamson, No. ACM 40211
We have considered issues (2) through (8) and find none requires discussion
or warrants relief.4 See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
In this opinion we discuss the first assignment of error and find no error ma-
terially prejudicial to Appellant’s substantial rights. Concluding that the find-
ings of guilty and sentence are correct in law and fact, and should be approved,
we affirm the findings and sentence.
I. BACKGROUND
Appellant alleges error in the military judge’s application of Mil. R. Evid.
404(b) and 403. He contends he was wrongfully convicted of sexual assault as
a result. He claims that evidence of his abusive behavior toward JT, including
evidence that was admitted with regard to Specifications 3 through 6 of Charge
II (Article 128, UCMJ),5 was inadmissible to show that he committed the sex-
ual assault alleged in Specification 4 of Charge I (Article 120, UCMJ). In our
consideration of this issue, we evaluated evidence of Appellant’s conduct to-
ward JT, including the factual underpinnings of the charged incidents of phys-
ical abuse. We summarize that evidence here along with the evidence support-
ing Appellant’s conviction for sexual assault.
JT was the first witness called to testify at Appellant’s trial. She and Ap-
pellant met in March 2018. In August 2018 she moved to Roy, Utah, and began
living with Appellant in an apartment near Hill Air Force Base, Utah. They
had a “good” relationship until it took a turn for the worse. In time, Appellant
would make derogatory comments about JT’s appearance, telling her she “pre-
sented [her]self as a wh[*]re.” He was “always” angry when she spent time with
friends. Appellant told her he “didn’t trust any of [her] female friends” and
thought her male friends “just wanted to sleep” with her, believing “that[ was]
the only reason” the males would talk to her. If JT wanted someone to visit
their home Appellant “had to approve who it was,” but “he never approved an-
yone coming over.” When she was away from home, Appellant made her check
in with him before spending time with friends. During a three-day trip to Las
Vegas, Nevada, for training, and while away from home on the first night, JT
4 Although not raised by Appellant, we considered the fact that Prosecution Exhibit 9
is missing from the record. In its place is a duplicate of a different exhibit. We conclude
relief is not warranted because the missing exhibit relates to a specification of animal
abuse of which Appellant was acquitted, and the evidence that was admitted to prove
that specification has no bearing on any issue before the court.
5 Specifications 3 through 6 of Charge II allege offenses committed upon JT. Appellant
was found guilty of Specification 3 of Charge II for assault consummated by battery,
and guilty, by exceptions, of Specification 6 of Charge II for aggravated assault by in-
flicting substantial bodily harm. Appellant was acquitted of assault consummated by
battery in Specifications 4 and 5 of Charge II.
3
United States v. Williamson, No. ACM 40211
received numerous “missed calls, [and] texts” from Appellant. Appellant was
“really upset” that she went out as a group and he called JT’s mother to com-
plain about JT spending time with male coworkers.
JT testified about incidents with Appellant that happened two to three
years before trial. In her telling, “[t]here were times after things would get
physical between [them]” and she “would leave” and go “to a friend’s house who
lived nearby.” “[M]ultiple times” she would pack her belongings in her car and
drive away, but she “didn’t really have anywhere to go.” She lacked money to
put down a security deposit on an apartment and had two dogs she “didn’t want
to leave . . . behind.” On cross-examination by Defense, JT volunteered she
“d[id]n’t recall specific dates for a lot of th[o]se events.” When discussing the
incidents with special agents of the Air Force Office of Special Investigations
(AFOSI) about a year before her trial testimony, she “gave estimates of the
months that every situation occurred to the best of [her] knowledge.”
Appellant introduced a written statement JT gave to the police during an
interview after the last charged incident of assault. JT authenticated that
statement and her signature, and the exhibit was admitted without limitation.
In that statement she described incidents of Appellant’s conduct, including
some that went beyond misconduct charged by the Government. For example,
she described how Appellant “ha[d] shoved [her] previously, throw[n a] phone
at the wall multiple times causing holes, punched [a] wall, broke [a] table,
punched [a] hole in [a] door, threw [a] fan through [a] door, shoved his mother[,
and] mentally abused [JT] by talking down to [her] and degrading [her].” On
redirect examination she acknowledged that Appellant shoved and grabbed
her multiple times during their relationship.
A. Assault in South Carolina Conviction (Specification 3 of Charge II)
JT testified about the first instance of physical abuse that occurred in Sep-
tember 2018. Appellant was performing temporary duty in South Carolina
when she visited and stayed with him in a hotel. On the day she arrived, the
two began to argue outside the hotel when JT noticed a picture of Appellant’s
ex-wife on his phone. JT admitted pushing Appellant during this argument. In
JT’s telling, she “shoved [Appellant] outside, [they] calmed down a little bit,
went up to the room, and that’s where things got physical.”
JT recalled how Appellant “pushed [her] on the ground and then . . . when
[she] got up, he threw [her] onto the bed and kind of held [her] down while [she]
was on the bed.” She recalled “[a]sking him to stop” as she lay on her back with
him on top of her. After Appellant stepped away and she got off the bed, they
argued. JT told Appellant she wanted to leave and he then threw her car keys
in her direction, hitting a chair. Appellant “said that he wasn’t trying to hit
[her], that he has good aim, [and] that if he wanted to hit [her], he would have.”
4
United States v. Williamson, No. ACM 40211
JT did not leave the hotel after the incident. Appellant’s conduct in the hotel
room was the basis for his conviction for assault consummated by battery by
shoving JT’s body with his hand as alleged in Specification 3 of Charge II.
B. Assault in Utah Allegations (Specifications 4–5 of Charge II)
1. Conduct Alleged in Specification 4 of Charge II
JT testified about Appellant’s abusive behavior when they lived in Roy,
Utah, between December 2018 and July 2019. JT recalled “there was a time
that [Appellant] shoved [her] up against the doorframe to the laundry room
and he held [her] there . . . . [with] his hand around [her] neck.” Her “breathing
was restricted” and “it was hard to swallow.” Trial counsel asked JT what she
was thinking about when Appellant held her against the doorframe. She an-
swered she “was afraid” and “scared of like standing up for [her]self and mak-
ing [Appellant] more upset. [She] was scared that he was going to choke [her]
harder.” When he let go, “he was yelling at” her as he followed her to their
bedroom. After she turned to face Appellant, he shoved her onto the bed. JT
described falling “back onto the bed.” During the incident, Appellant “punched
[her] and he kind of stepped back a little.” When he came toward her again,
she stuck out her leg to “keep him away from [her], and [her] foot hit his stom-
ach,” which ended the physical conflict. On cross-examination, JT acknowl-
edged she could not remember the month, much less the week, when the inci-
dent occurred; however, she “would guess March or April” 2019.
JT testified in general terms about verbal arguments they had, including
that Appellant would “throw” and “break” things, which as noted earlier, went
beyond the charged incidents of misconduct. In her telling, “the first time it
actually got physical was maybe March 2019.” Three more times during her
direct examination JT offered that she was uncertain if the incident she went
on to describe was the first incident involving Appellant in Roy, Utah.
Appellant was found not guilty of unlawfully grabbing JT, an intimate part-
ner, on the neck with his hand between on or about 1 January 2019 and on or
about 30 June 2019, as charged in Specification 4 of Charge II.
2. Conduct Alleged in Specification 5 of Charge II
JT described a second incident in July 2019 toward the end of her relation-
ship with Appellant. Sometime in June or early July, Appellant hurt his foot.
Although Appellant was given crutches, he rarely used them to walk.6 The
6 During follow-up questioning by trial counsel about how Appellant was able to walk
without crutches, JT explained he walked “[r]eally well. He maybe kind of hobbled a
little bit, but . . . there were times that he was going after [her] around the house,
around the apartment. So he could still move pretty quickly.”
5
United States v. Williamson, No. ACM 40211
night before this second incident JT “want[ed] to sleep in [their] bed” so she
laid down in their bedroom. Appellant “walked into the room and said, ‘This is
my bed. If you want to sleep here, you have to have sex with me.’” JT left and
went to the room where Appellant’s son would sleep when he visited. After JT
locked the door, Appellant stood outside of the door, calling her “b[*]tch,”
“wh[*]re,” and saying other “really hurtful” words. JT “didn’t say anything
back;” she “tried to ignore him” and sleep. “Eventually, he got tired of [her] not
responding and he left.”
The next morning JT and Appellant walked past each other in the upstairs
hallway. He asked JT if she would give him a ride to work, and she declined
because of how he spoke to her the previous night. In JT’s telling, Appellant
“gave [her] this evil look and he shoved [her] into the wall” as they “were stand-
ing right outside of the bathroom.” Later, she testified, “I think he shoved me
-- I don’t remember for certain, but I think he shoved me with his hands on my
right side.” As she walked downstairs Appellant “threw one of his crutches” at
her. On cross-examination, JT stated she “d[id]n’t remember” if this second
incident “was July or June,” but “[t]here were multiple times that he shoved”
her. During questioning by the military judge, JT likewise could not recall if
the incident occurred in June or July. She testified, “My guess would be it was,
like, June, but I’m not certain.”
Appellant was found not guilty of unlawfully shoving JT, an intimate part-
ner, against a wall with his hand between on or about 1 July 2019 and on or
about 28 July 2019, as charged in Specification 5 of Charge II.
C. Aggravated Assault in Utah Conviction (Specification 6 of Charge
II)
JT described a third incident at the end of July after the incident with the
crutches. She believed this third incident occurred later the same day as the
second incident, possibly on 29 July 2019. She explained that in the few days
before the incident they had been arguing. The argument related to a text mes-
sage JT received from Appellant’s ex-wife and the mother of his son, which
revealed a recent sexual encounter between Appellant and his ex-wife. JT was
upset by the text and that night she asked Appellant to show her text messages
he had with his ex-wife “just to show [her] that nothing happened between
them.” JT picked up Appellant’s phone where he set it on the kitchen counter.
When Appellant saw she had his phone, “he came at [her] and he shoved [her]
against the wall.” On cross-examination, JT testified with greater certainty
that this third incident occurred on the night of 29 July 2019, and that of the
“multiple times” when Appellant had shoved her, this one was “the one [she]
remember[ed] most.” On cross-examination she also acknowledged an inter-
view with police in which she stated that she grabbed Appellant’s phone and
“that’s when he came at” her, although “[h]e didn’t shove [her] or anything.”
6
United States v. Williamson, No. ACM 40211
On direct examination JT described how Appellant held her against a wall
with his hand or arm either across her chest or at the base of her neck, alt-
hough he was not trying to choke her. The Government introduced the tran-
script of the police interview in which JT states Appellant “just kind of held
[her] against the wall to get his phone back.” JT testified she “shoved him to
get him away from [her],” then Appellant “came at [her] again and he grabbed
[her] head.” He then “pushed [her] down to the ground.” In her telling, Appel-
lant “started punching [her] in the head, and he punched [her] in the ribs, on
[her] arm, and it felt like he kicked [her]. [She] couldn’t really see what was
going on, but it felt like he kicked [her].” She believed she was kicked “[b]ecause
it felt different than when he punched [her]. [She] didn’t see his foot, but it
didn’t feel the same” as when he punched her with a fist.
JT testified how Appellant “sat down and was just staring at [her]” as she
lay on the floor crying. Her face felt “really swollen,” she felt a huge bump on
her cheek, and was in pain. JT got up to go to the bathroom and locked the
door. She saw her face was “really swollen” and she had a black eye. She took
pictures and sent them to a manager where she worked. When she spoke to
Appellant, explaining she “needed to go to the [emergency room] to make sure
that [she] was okay,” she “noticed that [her] hearing wasn’t right. It sounded
really muffled. It sounded like, almost like [she] was under water.” At trial she
explained “when [she] yawned it . . . sounded like air coming out of [her] ear.”
At one point when JT was preparing to leave to go to an emergency room,
Appellant grabbed her keys and threw them at her, hitting the oven. Appellant
repeatedly asked what she was going to tell the medical providers about the
cause of her injuries. In JT’s telling,
He kept saying, “You think you’re so strong. You think you’re
such a tough woman, but you’re scared of me now, aren’t you?”
And he kept like lurching forward at me as if he was going to hit
me again. He followed me upstairs like that. He followed me
back down the stairs like that. And he just kept making those
comments. Kept lurching forward at me like as if he was going
to hit me. He kept like laughing, thinking it was funny that I
was scared. And he told me that if he got arrested for what he
did, that he would kill me and kill everyone that I loved.[7]
The following day, at the urging of her manager, JT sought medical evalu-
ation and treatment. At trial, the bruises were corroborated by photographs JT
7Appellant was found not guilty of obstruction of justice by uttering words to this effect
“with intent to impede the due administration of justice in the case of himself, against
whom he had reason to believe there would be criminal proceedings pending,” as
charged in the Specification of Charge III.
7
United States v. Williamson, No. ACM 40211
took of her face and the testimony of her manager who saw the pictures and
observed her at work the morning after the incident. Additionally, the manager
testified that JT asked him to hold onto the pictures “because she was worried
that her current boyfriend at the time would go through her phone and delete
[them].” A nurse practitioner who treated JT testified she observed bruising on
JT’s left eyelid, which was consistent with a medical record admitted into evi-
dence. The nurse documented a tympanic membrane perforation she observed
inside JT’s left ear, which the nurse explained in her testimony “mean[t] that
there was a hole in the left eardrum.”
Appellant’s conduct was the basis for his conviction for aggravated assault
by striking JT, an intimate partner, on the head with his hand, and thereby
inflicting substantial bodily harm upon her, to wit: a ruptured ear drum on or
about 30 July 2019, as alleged in Specification 6 of Charge II. The military
judge found Appellant guilty of this offense after excepting the words, “and
kicking her back with his foot,” from the finding of guilty. Appellant was found
not guilty of the excepted words.
D. Sexual Assault Conviction (Specification 4 of Charge I)
JT testified that Appellant sexually assaulted her a day or two after the
aggravated assault that ruptured her eardrum. Appellant entered the bedroom
as she lay in bed on her stomach. Appellant lay down on top of her. Appellant
tried to hug and kiss her as she told him to get off and that she “just wanted to
be alone. That [she] needed space.” JT explained what happened next:
A [JT]. I keep asking him to stop. I’m not kissing him back. I’m
not showing affection. I just kept asking him to stop, to leave me
alone.
Q [Trial Counsel]. Did he stop?
A. No, he did not.
Q. Okay. What did he do?
A. He -- I remember he took off my shorts. I don’t remember if
he took off my underwear or not. And he put his penis . . . in my
vagina. He -- I was on my stomach and he was on top of me.
Q. Okay. What was going through your mind while he was doing
that?
A. I was really scared. And I didn’t want him to hit me again. I
didn’t want to make him mad. I felt like he -- I felt like he took
away my freedom to choose who I give myself to. I just remember
being scared. Scared of not giving him what he wanted, or not
letting him have what he wanted.
8
United States v. Williamson, No. ACM 40211
Q. Did you want to have sex with him?
A. No.
Q. And before he started, you told him “No”?
A. Yes.
At one point, JT relayed that Appellant remarked, “This is the only beating
I should do,” which prompted JT to start crying. Appellant stopped after JT
told him she had to go to the bathroom. When she returned, Appellant was
sitting on the couch and asked, “That’s it? We’re not going to finish?” JT “just
said, ‘No.’”
On cross-examination JT maintained she told Appellant “no” and “stop.”
When she returned from the bathroom Appellant did not reinitiate sexual ac-
tivity. She also acknowledged the first time she reported the sexual assault
was more than a year later when she was interviewed by special agents of the
AFOSI. She did not mention the incident until a second interview with AFOSI
agents. Appellant’s conduct in their bedroom was the basis for his conviction
for sexual assault of JT by penetrating her vulva with his penis without her
consent, as alleged in Specification 4 of Charge I.
After the sexual assault, sometime at the end of July or the beginning of
August 2019, JT moved out of the residence. After moving out and making a
statement to police, she sent Appellant messages about how much she loved
him and how she wanted to marry him one day. She also texted him,
I think if we live together, that will just delay us from getting us
to where we want to be. That is the biggest reason why I left.
Not because I don’t want to be with you. Not because I’m afraid
of you. But because that is what honestly I think will save our
relationship.
JT testified she sent the message, telling Appellant what she “thought he
wanted to hear.”
II. DISCUSSION
In his first assignment of error, Appellant urges us to set aside his convic-
tion for sexually assaulting JT on grounds that the military judge who presided
at trial erred by denying his pretrial motion and therefore abused his discre-
tion. We conclude that the military judge did not abuse his discretion.
A. Additional Background
Before trial, the Government provided written notice to Appellant of its in-
tent to show Appellant’s criminality using several Mil. R. Evid. 404(b) matters.
It cited Mil. R. Evid. 404(b)(2) as the basis to use those matters “for a non-
9
United States v. Williamson, No. ACM 40211
propensity purpose.” See Mil. R. Evid. 404(a)(1). Although the notice cast a
wide net, as relevant to Appellant’s conviction for sexual assault of JT, the
Government explained the non-propensity purposes for three matters like this:
• First, “[t]he [P]rosecution intends to argue that the charged in-
cidents of physical abuse demonstrate[ ] a pattern of behavior,
that continued to escalate . . . .”8
• Second, “[d]uring the course of their relationship, [Appellant]
was mentally and emotionally abusive to [JT], to include calling
her names and restricting her ability to interact with other peo-
ple. The [P]rosecution intends to offer this evidence as proof of
[Appellant]’s intent, pattern of behavior, and modus operandi.”
• Third, “[d]uring their relationship, in approximately July 2019,
[Appellant] called [JT] a ‘b[*]tch’ and a ‘wh[*]re’ before throwing
a walking crutch in the direction of [JT]. The [P]rosecution in-
tends to offer this evidence as proof of [Appellant]’s intent and
pattern of behavior.”
Appellant disputed the relevance of these matters by filing a motion to ex-
clude their consideration by the trier of fact. On appeal, he maintains that the
conduct noticed by the Government, which was subsequently admitted as evi-
dence, allowed “damaging bad-character evidence . . . without legal purpose.”
With respect to the first Mil. R. Evid. 404(b) matter raised by the Govern-
ment, “the charged incidents of physical abuse” of JT related to the four speci-
fications under Charge II. Those specifications alleged violations of Article 128,
UCMJ, as discussed above. It bears repeating that the Government accused
Appellant of using his hand to shove JT’s body and, in a separate incident,
striking her on the head and hand, and kicking her back with his foot, thereby
causing a ruptured ear drum.9 The Government also accused Appellant of grab-
bing JT on the neck with his hand and shoving her against a wall with his
8 The Prosecution’s notice encompassed all “charged incidents of physical abuse,”
claiming they showed a pattern that escalated “from each romantic relationship” in-
volving Appellant and other victims. To the extent the notice reached incidents that
involved victims other than JT, the military judge ruled that the Prosecution failed to
show “what non-propensity purpose would be served by allowing trial counsel to argue
that an exception exists from the normal prohibition against spillover.” Accordingly,
with regard to the first noticed Mil. R. Evid. 404(b) matter, the focus of our opinion is
evidence of physical abuse of JT, notably, evidence of various assaults upon her.
9As discussed, supra, the Government charged this conduct in Specifications 3 and 6
of Charge II, which alleged assault consummated by battery and aggravated assault,
respectively. Appellant was found guilty of Specification 3; and guilty of Specification
6, except the words, “and kicking her back with his foot.”
10
United States v. Williamson, No. ACM 40211
hand.10 In its opposition to the Defense’s motion, the Government explained
the evidence would show that Appellant’s abusive “behavior would precede
nonconsensual intercourse” and therefore was relevant on the issue of consent
to the charged sexual assault.
The military judge heard argument on the motion in an Article 39(a),
UCMJ, 10 U.S.C. § 839(a), session. Appellant argued the three noticed matters
showed criminal propensity, and were not permitted under Mil. R. Evid. 404(b)
as a result. Appellant argued, moreover, that any probative value was substan-
tially outweighed by the danger of unfair prejudice under Mil. R. Evid. 403.
B. Ruling
The military judge ruled on the motion in an email he sent to counsel for
both parties before trial. He finalized that ruling in a written decision after the
Prosecution completed offering evidence at trial on the offenses of which JT
was a named victim.
In the email, the military judge stated his finding,
[T]he Government may argue that [Appellant] engaged in a pat-
tern of behavior relating to physical abuse and control of [JT] as
it pertains to the elements of consent and bodily harm and the
defense of mistake of fact related to other specifications in
Charges I and II involving [JT] as the named victim. In other
words, the Government is permitted to argue the relevance of
past interactions between [JT] and [Appellant] to the extent they
might impact the states of mind of [JT] and [Appellant] related
to those elements.
The military judge further found that the Government met its burden to
introduce evidence demonstrating that Appellant “may have acted with a plan
or intent to control [JT] as that relates to his commission of the charged of-
fenses in which she is the named victim.”
In his written ruling, the military judge concluded that the Prosecution
presented sufficient evidence to reasonably support a finding that Appellant
engaged in the conduct at issue. With regard to the noticed matters, he found
10 As discussed, supra, the Government charged this conduct as assault consummated
by battery (Specifications 4 and 5 of Charge II). Appellant was acquitted of Specifica-
tions 4 and 5.
11
United States v. Williamson, No. ACM 40211
the evidence tended to show Appellant engaged in “behaviors . . . that can gen-
erally be characterized as ‘controlling’ in nature.”11 The military judge then
applied legal principles underlying Mil. R. Evid. 404(b) to that evidence.
With respect to the first Mil. R. Evid. 404(b) matter—the conduct underly-
ing incidents of physical abuse of JT that the Government alleged in the four
specifications of Charge II—the military judge ruled that “[t]o the extent that
these interactions show a pattern of behavior or design related to abuse and
control of [JT], trial counsel may argue the relevance of these incidents” on its
burden of proof. The military judge permitted their use in three ways: (1) on
the question of JT’s “consent;” (2) “whether a touching was offensive so as to
constitute bodily harm;” and (3) whether “defenses such as mistake of fact”
were raised by the evidence and disproven by the Government. Applying Mil.
R. Evid. 403, the military judge found “the probative value of this evidence
[wa]s not substantially outweighed by the danger of unfair prejudice that
might occur by evaluating its impact on various specifications, particularly in
a military judge alone forum.”
With respect to the second and third Mil. R. Evid. 404(b) noticed matters,
the military judge likewise found the Government had shown non-propensity
purposes. He concluded that those matters
may be admitted as evidence [of Appellant]’s pattern of behavior,
intent and absence of mistake of fact. As these behaviors inform
the overall nature of the relationship between [Appellant] and
[JT], the effect of these behaviors on the state of mind of both is
relevant for multiple valid, non-propensity or character related
purposes such as the [c]ourt’s consideration of the element of
consent in regard to the charged sexual assaults.
Applying Mil. R. Evid. 403, the military judge stated that the probative
value was not substantially outweighed by the danger of unfair prejudice.
C. Law
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is not admissible as evidence of the person’s character in order to
show the person acted in conformity with that character on a particular occa-
sion, and cannot be used to show predisposition toward crime or criminal char-
acter. However, such evidence may be admissible for another purpose, includ-
ing to show motive, intent, plan, absence of mistake, or lack of accident. Mil.
11 However, the military judge identified a different alleged victim in this paragraph
of his ruling, using AR’s initials instead of JT’s. The weight of evidence indicates that
the military judge intended to refer to JT in this part of his analysis. Counsel for both
parties seem to concede this was a scrivener’s error, as finds this court.
12
United States v. Williamson, No. ACM 40211
R. Evid. 404(b)(2); United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010)
(citation and footnote omitted). The list of potential purposes in Mil. R. Evid.
404(b)(2) “is illustrative, not exhaustive.” United States v. Ferguson, 28 M.J.
104, 108 (C.M.A. 1989) (footnote omitted).
The rule, “like its federal rule counterpart, is one of inclusion.” United
States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000) (citing 1 Edward J. Im-
winkelried, Uncharged Misconduct Evidence § 2:31 at 163 (1999)), overruled in
part on other grounds by United States v. Inong, 58 M.J. 460, 465 (C.A.A.F.
2003). The rule “does not say whether the ‘other crimes, wrongs, or acts’ must
be charged or uncharged conduct.” Id. (quoting Mil. R. Evid. 404(b), Manual
for Courts-Martial, United States (1998 ed.)). The factual underpinnings of one
specification may be used by the trier of fact as proof of a different offense. Id.(observing “a pattern of lustful intent, established in one set of specifications,
could be used by factfinders as proof of lustful intent in a different set of spec-
ifications” (citations omitted)). However, “evidence that an accused committed
one offense is not admissible to prove that the accused had the propensity to
commit another offense.” United States v. Hyppolite, 79 M.J. 161, 161 (C.A.A.F.
2019) (citing Mil. R. Evid. 404(b)(1), Manual for Courts-Martial, United States
(2016 ed.)).
We apply a three-part test to review the admissibility of evidence offered
under Mil. R. Evid. 404(b): (1) Does the evidence reasonably support a finding
by the factfinder that Appellant committed other crimes, wrongs, or acts? (2)
Does the evidence of the other act make a fact of consequence to the instant
offense more or less probable? and (3) Is the probative value of the evidence of
the other act substantially outweighed by the danger of unfair prejudice under
Mil. R. Evid. 403? United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)
(citations omitted). “If the evidence fails to meet any one of these three stand-
ards, it is inadmissible.” Id.A military judge’s ruling under Mil. R. Evid. 404(b) and Mil. R. Evid. 403
will not be disturbed except for a clear abuse of discretion. United States v.
Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (citation omitted). “A military judge
abuses his discretion when: (1) the findings of fact upon which he predicates
his ruling are not supported by the evidence of record; (2) . . . incorrect legal
principles [are] used; or (3). . . his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F.
2008) (per curiam)).
D. Analysis
The gravamen of Appellant’s challenge to the evidentiary rulings is that
the analysis therein was faulty and insufficient. Appellant claims it was error
13
United States v. Williamson, No. ACM 40211
to allow evidence of his abusive treatment of JT, including evidence offered to
prove the offenses alleged in Specifications 3 through 6 of Charge II, to show
that he committed the sexual assault alleged in Specification 4 of Charge I. We
conclude that the military judge did not abuse his discretion.
To understand Appellant’s claim, we briefly turn to evidence the Govern-
ment admitted to prove a specification of which Appellant was acquitted: rape
of a different alleged victim (AR) by using unlawful force in violation of Article
120, UCMJ, Manual for Courts-Martial, United States (2012 ed.). Before trial,
the Prosecution noticed Appellant’s acts of controlling and abusive behavior
toward AR that it wanted to use for a stated non-propensity purpose under Mil.
R. Evid. 404(b). Over Appellant’s objection, the military judge found those acts
met safeguards for admissibility and allowed the evidence to prove that Appel-
lant raped AR. As explained next, Appellant contends that the military judge’s
evaluation of the Mil. R. Evid. 404(b) evidence involving AR was faulty, and so
“corrupted his analysis [of] the evidence involving JT.”
In Appellant’s view, the military judge “seemed to merely cut and paste[ ]
the analysis he used regarding AR” in his written ruling, even referring to “AR”
by mistake in his analysis of acts involving JT. Appellant contends that the
military judge’s mistake in referring to AR when he meant JT illustrates he
“provided no independent analysis of the facts as they pertained to JT,” and
“leaves one questioning whether the analysis was actually conducted.” Appel-
lant maintains that ruling tainted the military judge’s application of Mil. R.
Evid. 404(b) to acts on which the Government relied to prove that Appellant
committed a sexual assault of JT.
We appreciate Appellant’s concern. At the same time, we decline to liken a
scrivener’s error to flawed judgment. The military judge prefaced his written
ruling with the proviso that it was based on “the written submissions” of coun-
sel and “information provided during the motions hearing.” Later, he allowed
“[n]o evidence has been offered to indicate [JT]’s[12] testimony at trial would be
different in any significant degree from her summarized statements contained
in the Report of Investigation.” The military judge preceded his analysis of the
second and third Mil. R. Evid. 404(b) matters at issue with headers that iden-
tified JT as the subject of analysis beneath those headers. On the whole, we
12The military judge again identified “AR” by her initials and not JT. We credit Appel-
lant’s theory that the military judge duplicated language from elsewhere in his ruling
and neglected to change the initials. For two reasons we are confident the military
judge was referring to JT’s future testimony at trial and not AR’s. First, the military
judge twice used identical language when he referred to the summarized statements
of both victims in the Report of Investigation, each time using AR’s initials. Second,
the language quoted here from the ruling—using AR’s initials—appeared immediately
after the military judge summarized JT’s pretrial interviews with investigators.
14
United States v. Williamson, No. ACM 40211
interpret the ruling as deciding how evidence of Appellant’s treatment of JT
could be used without reliance on evidence of Appellant’s abusive treatment of
AR, as claimed.
Consistent with our understanding, the military judge’s factfinding as re-
gards Appellant’s conduct with JT, and his analysis of those facts in his ruling,
were articulated with sufficient precision that we can perform our appellate
function in an informed manner. Where a military judge evaluates the same
or similar acts as bear on admissibility under a rule of evidence, but in regard
to different alleged victims, we do not find cause to question the military
judge’s analysis even though the language of that analysis may be similar, if
not identical, to other analysis in the same ruling. We find that the military
judge articulated his ruling as regards JT with sufficient particularity that
scrutiny of his ruling as regards AR is not warranted.
We turn, then, to evaluate the military judge’s application of the three-part
test in Reynolds, 29 M.J. at 109, to determine the admissibility of evidence
under Mil. R. Evid. 404(b).
1. Evidence of Crimes, Wrongs, or Other Acts
With regard to the first Reynolds prong—whether the evidence reasonably
supports a finding that Appellant engaged in conduct underlying the three no-
ticed matters that involved JT—the military judge did not abuse his discretion
in finding that it did. The military judge found that evidence could support a
finding that Appellant engaged in instances of abuse that constituted a pattern
of controlling behavior.
The military judge’s factfinding on the first Reynolds prong is supported by
the trial record. At times, JT had difficulty recalling when a particular incident
of abuse occurred by reference to a date or in relation to other events. However,
the trier of fact could conclude that a particular incident occurred during the
relevant period even as JT, at times, manifested uncertainty when a particular
incident happened.
2. Facts of Consequence Made More or Less Probable
We find, also, that the military judge did not abuse his discretion in his
application of the second Reynolds prong—whether evidence of other acts
makes a fact of consequence to the instant offense more or less probable. Con-
sistent with the Government’s proffer, the military judge found the incidents
at issue were admissible, inter alia, as a “pattern of behavior.”
Appellant focuses on this finding in his reply brief. He maintains that a
pattern of behavior “seems functionally the same as propensity.” Nonetheless,
we are convinced that the military judge allowed the evidence at issue for a
permissible purpose and not for bad character or propensity, as claimed. In
15
United States v. Williamson, No. ACM 40211
that regard, “a pattern of conduct” that satisfies Mil. R. Evid. 404(b) and “of-
fered for some purpose other than to demonstrate [an] appellant’s propensity
or predisposition to commit crime” is admissible if logical and legal relevance
is shown. See United States v. Simpson, 56 M.J. 462, 464 (C.A.A.F. 2002) (al-
lowing trier of fact to consider evidence for the “limited purpose of demonstrat-
ing appellant’s tendency to take advantage sexually of women who were intox-
icated or under the influence of alcohol”); see also Tanksley, 54 M.J. at 175(pattern of lustful intent); United States v. Johnson, 49 M.J. 467, 475 (C.A.A.F.
1998) (pattern of sexual abuse); United States v. Ray, 26 M.J. 468, 472 (C.M.A.
1988) (pattern of drug abuse).
Put a different way, a pattern of behavior, conduct, or acts in reference to
Mil. R. Evid. 404(b) is not synonymous with propensity where there are logical
and legal safeguards for admission and use. Among established safeguards is
if the trier of fact could find a fact of consequence more or less probable. See
Reynolds, 29 M.J. at 109 (concluding “evidence that appellant used the very
same method to accomplish his sordid purposes on other occasions was ex-
tremely probative of a predatory mens rea on the night in question”); see also
Simpson, 56 M.J. at 464 (concluding “evidence was probative of a material is-
sue other than character” (citations omitted)); Johnson, 49 M.J. at 474 (con-
cluding the evidence at issue “tend[ed] to make [victim]’s alleged abuse more
probable than if the evidence had not been introduced”); Ray, 26 M.J. at 472(allowing “that a pattern of regular drug use can show a knowing drug use on
a particular occasion”).
Here, the military judge found Appellant’s behavior toward JT showed not
only a pattern, but that it “inform[ed] the overall nature of the relationship
between [Appellant] and [JT].” The military judge concluded that “the effect of
these behaviors on the state of mind of both [Appellant and JT] [wa]s relevant
for multiple valid, non-propensity or character related purposes such as the
[c]ourt’s consideration of the element of consent in regard to the charged sexual
assaults.” On appeal, Appellant challenges this aspect of the ruling as it bears
on his sexual assault conviction. As explained next, on this record we are con-
fident that the military judge did not consider evidence of a pattern of behavior
as interchangeable with propensity.
Among the facts of consequence for this offense were whether JT consented
to vaginal intercourse with Appellant,13 and whether Appellant mistakenly be-
lieved that she had consented.14 The probative value of the evidence at issue
13See 2019 MCM, pt. IV, ¶ 60.b.(2)(d) (listing elements of sexual assault as charged in
Specification 4 of Charge I); see also 2012 MCM, pt. IV, ¶ 45.a.(g)(8) (defining consent)
See R.C.M. 916(j)(1) (2019 MCM and 2012 MCM) (describing defense of ignorance or
14
mistake of fact).
16
United States v. Williamson, No. ACM 40211
was not unlike two “key” facts of consequence in Reynolds: “(1) whether the
prosecutrix consented or, if not, (2) whether [the] appellant had reason to be-
lieve she had and, hence, was reasonably mistaken as to her consent.” 29 M.J.
at 109. With respect to sexual assault, “consent” includes “a freely given agree-
ment to the conduct at issue by a competent person.” 10 U.S.C. § 920(g)(7)(A)
(emphasis added). “All the surrounding circumstances are to be considered in
determining whether a person gave consent.” 10 U.S.C. § 920(g)(7)(C). To re-
fute “mistake of fact” as a defense, the Government had the burden to prove
beyond a reasonable doubt that Appellant’s ignorance or mistake was not hon-
est or not reasonable “under all the circumstances.” R.C.M. 916(b)(1), (j)(1).
The three Mil. R. Evid. 404(b) matters at issue are probative of these facts
of consequence. JT testified how she felt insecure to assert herself in the rela-
tionship. She feared upsetting Appellant would serve only to escalate conflict
and lead to additional and more forceful abuse. She explained her state of mind
during the sexual assault in July 2019 after Appellant had recently punched
her in the head and ruptured her eardrum: in her telling, she “didn’t want him
to hit [her] again” or “make him mad.” She was “[s]cared of not giving him what
he wanted, or not letting him have what he wanted.” Trial counsel argued the
nexus between the Mil. R. Evid 404(b) matters at issue and the sexual assault
by explaining how it followed on the heels of the aggravated assault. Trial
counsel argued JT’s testimony “provides context to the fact” that Appellant
“continuously exerted control over her, making her dependent on him.” Trial
counsel explained how Appellant used “his physical dominance over her” to
achieve that control, and in that context, that the Government had met its
burden to prove beyond a reasonable doubt the elements of sexual assault.
We hold that the Mil. R. Evid. 404(b) matters at issue are among the total-
ity of surrounding circumstances that the trier of fact could evaluate: first, to
decide whether there was a freely given agreement to the sexual conduct at
issue; and second, if Appellant might have misunderstood whether JT had
given consent. See Mil. R. Evid. 401(a); United States v. Moore, 78 M.J. 868,
876 (A.F. Ct. Crim. App. 2019) (holding that evidence of an appellant’s control-
ling behavior was admissible under Mil. R. Evid. 404(b) to show motive, intent,
and absence of mistake); see generally United States v. Jackson, 2011 CCA
LEXIS 303, at *17 (A.F. Ct. Crim. App. 15 Aug. 2011) (unpub. op.) (holding
numerous uncharged acts admissible to show appellant’s “strong desire to
dominate and control women” as motive and plan). The Mil. R. Evid. 404(b)
matters at issue made the fact that Appellant may have penetrated JT when
she did not consent more probable and Appellant’s ignorance or mistake that
JT did consent less probable. The military judge did not err in his application
of the second Reynolds prong.
17
United States v. Williamson, No. ACM 40211
3. Probative Value and Danger of Unfair Prejudice
Applying the third Reynolds prong, the military judge found the probative
value of the evidence at issue was not substantially outweighed by the danger
of unfair prejudice to Appellant under Mil. R. Evid. 403. With regard to the
first Mil. R. Evid. 404(b) matter—evidence underlying the charged incidents of
abuse of JT that preceded the sexual assault offense—the military judge con-
sidered the probative weight “by evaluating its impact on various specifica-
tions, particularly in a military judge alone forum.” The military judge reached
a similar conclusion with regard to evidence of Appellant’s mental and emo-
tional abuse of JT, stating “that the probative value of this [Mil. R. Evid.
404(b)] evidence [wa]s not substantially outweighed by the danger of unfair
prejudice.” We again find that the military judge did not abuse his discretion.
Appellant urges us to perform our own Mil. R. Evid. 403 balancing, arguing
“where a military judge fails to place on the record his analysis and application
of the law to the facts, little deference should be given.” Citing United States v.
Manns, Appellant contends that the record is indeterminate how the military
judge reached his conclusion. 54 M.J. 164, 166 (C.A.A.F. 2000). Appellant con-
tends the military judge did not reveal what his “reasons were for finding that
the probative value was not substantially outweighed by the danger of unfair
prejudice.” Appellant further contends that “[f]ailing to even cite to the factors
or the analysis required is cause to question whether the analysis was even
conducted.”
In Manns, the appellant was sentenced by a military judge who admitted
contested rebuttal evidence in sentencing. Id. On appeal, the United States
Court of Appeals for the Armed Forces (CAAF) observed it “gives military
judges less deference if they fail to articulate their balancing analysis on the
record, and no deference if they fail to conduct the [Mil. R. Evid.] 403 balanc-
ing.” Id. (citing Gov’t of the Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d
Cir. 1993)). Because the military judge in Manns did not articulate any Mil. R.
Evid. 403 balancing, the CAAF deemed further scrutiny was appropriate, stat-
ing that the judges on the court had “examined the record [them]selves.” Id.(citation omitted).
Appellant asks us to not only examine the record, but urges us to apply our
own balancing of logical and legal relevance. He argues that the military judge
“merely recited in a talismanic fashion the third prong of the [Reynolds] test.”
As a remedy, he asks us to equate the military judge’s failure to provide a de-
tailed analysis under Mil. R. Evid. 403 with situations like Manns where no
balancing was articulated. However, we do not read Manns as Appellant does.
Even if Manns were analogous to the facts here, in that case the CAAF did not
do as Appellant suggests we should by stepping into the shoes of the military
judge to decide whether discretionary exclusion of logically relevant evidence
18
United States v. Williamson, No. ACM 40211
was warranted. In Manns, rather, the CAAF examined the record, including
the disputed evidence that was at issue in that case, and determined it was
“satisfied that the military judge was able to sort through the evidence, weigh
it, and give it appropriate weight.” Id. at 167 (citation omitted). The CAAF’s
rationale was that “the potential for unfair prejudice was substantially less
than it would be in a trial with members.” Id.
We find no reason to question the application of the military judge’s Mil. R.
Evid. 403 balancing to the Mil. R. Evid. 404(b) matters as they bear on the facts
of consequence that underlie Appellant’s sexual assault conviction. Noting the
“military judge alone forum” and having evaluated the evidence, it appears
neither unfair prejudice nor confusion—nor other Mil. R. Evid. 403 considera-
tions—were a concern to the military judge. Our deferential approach is in line
with the CAAF’s reasoning in Tanksley, which the court decided the same day
as Manns. In Tanksley, the CAAF made enduring observations about the third
prong of the Reynolds test, remarking it had “said on a number of occasions”
that a “military judge enjoys wide discretion when applying Mil. R. Evid. 403.”
54 M.J. at 176 (internal quotation marks omitted) (citing Manns, 54 M.J. at
166) (additional citation omitted). In the rule’s application to Mil. R. Evid.
404(b) matters, the CAAF will “exercise great restraint” and afford “maximum
deference” when the military judge has “conducted and announced his Mil. R.
Evid. 403 balancing test on the record.” Id. at 176–77 (citing Manns) (addi-
tional citations omitted).
A military judge is presumed to know the law and apply it correctly, absent
clear evidence to the contrary. United States v. Sanders, 67 M.J. 344, 346
(C.A.A.F. 2009) (per curiam) (citing United States v. Bridges, 66 M.J. 246, 248
(C.A.A.F. 2008)). The military judge was confident that, as the trier of fact in
the judge-alone case, he would use the evidence of Appellant’s controlling be-
havior and pattern of abuse for the limited permissible purposes under Mil. R.
Evid. 404(b), and not for general bad character or propensity. In a trial with
members there is concern that members will evaluate such limited-purpose
evidence “as character evidence and use it to infer that an accused has acted
in character, and thus convict.” Staton, 69 M.J. at 232. However, in a bench
trial where the record shows the military judge conducted and announced a
Mil. R. Evid. 403 balancing, as was the case here, “if evidence is admitted for
a limited purpose, we presume a military judge will consider it only for that
purpose.” United States v. Hays, 62 M.J. 158, 165 (C.A.A.F. 2005) (citations
omitted). We are satisfied, as the CAAF was in Manns, that the military judge
was able to sort through the evidence and give it appropriate weight.
4. Conclusion
The military judge did not abuse his discretion by allowing evidence of Ap-
pellant’s abusive treatment of JT, including evidence admitted with regard to
19
United States v. Williamson, No. ACM 40211
Specifications 3 through 6 of Charge II, to show that Appellant committed the
sexual assault in Specification 4 of Charge I. His findings of fact are supported
by the record and not clearly erroneous. Appellant has not shown that the mil-
itary judge incorrectly applied the law or that his ruling was arbitrary, fanci-
ful, clearly unreasonable, or clearly erroneous. See United States v. Shields,
___ M.J. ___, No. 22-0279, 2023 CAAF LEXIS 270, at *9 (C.A.A.F. 28 Apr. 2023)
(articulating abuse of discretion standard).
III. CONCLUSION
The findings and sentence as entered are correct in law and fact,15 and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
15The entry of judgment (EoJ), and the Statement of Trial Results that precede the
EoJ, state Appellant was found not guilty of the words, “kicking her back with his foot”
as charged in Specification 6 of Charge II. In fact, Appellant was found not guilty of
the words, “and kicking her back with his foot.” (Emphasis added). We find no preju-
dice owing to the omission.
20